Valparaiso University Law Review
Volume 14
Number 3
Spring 1980
Abortion Laws, Religious Beliefs and the First
Amendment
Steven L. Skahn
Recommended Citation
Steven L. Skahn, Abortion Laws, Religious Beliefs and the First Amendment, 14 Val. U. L. Rev. 487 (1980).
Available at: http://scholar.valpo.edu/vulr/vol14/iss3/4
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pp.487-526
Skahn: Abortion Laws, Religious Beliefs and the First Amendment
NOTES
ABORTION LAWS, RELIGIOUS BELIEFS
AND THE FIRST AMENDMENT
The constitutional controversies surrounding abortion-related
legislation now include the Religion Clauses of the first amendment. The legislation being challenged, by either restricting the
Medicaid funding of abortions or regulating the performance of abortions, embodies anti-abortion interests. Arguments have been advanced that religious beliefs and values have played a predominant
role in the enactment of such legislation and that the legislation
therefore violates the Establishment Clause.' Challengers have also
argued that such legislation violates the Free Exercise Clause' by
placing burdens on women with respect to any religious decision
they may make to have an abortion.
These arguments raise new questions both as to the scope of
the Establishment and Free Exercise Clauses as well as to the
nature of the underlying legislative concerns regarding abortion. A
threshold question is whether religious beliefs and values have in
fact played a predominant role in the enactment of legislation reflecting anti-abortion sentiment. If legislators did have religious reasons
for enacting such legislation, then the issue becomes whether
underlying religious values entail a violation of the Establishment
Clause. Another Establishment Clause question presented by the
arguments is whether the politicial divisiveness test, which is concerned with the avoidance of political division along religious lines,
is applicable in instances other than those involving the institutional
entanglement of government and religion. Relating to the Free Exercise Clause, an inquiry is needed as to whether an indigent
woman has a constitutional right to have an abortion governmentally
funded because of the conscientious nature of the abortion decision.
This note seeks to articulate and analyze both the arguments
being presented and the new questions these arguments raise. The
1.
"Congress shall make no law respecting an establishment of religion.. .
amend. I.
2. "Congress shall make no law ... prohibiting the free exercise [of religion]...."
U.S. CONST. amend. I.
U.S. CONST.
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note, however, does not attempt to determine whether an antiabortion view of the controversy is essentially a religious one, or
whether legislators favoring restrictions on the funding or performance of abortions have been motivated primarily by religious concerns. Though the note mentions these considerations,3 the emphasis
of the note is centered on the question of whether the Religion
Clauses are violated when the beliefs involved are predominantly
religious. The note reaches two conclusions. First, the Religion
Clauses as they have been applied do not demand a finding of unconstitutionality in this context. Second, to extend the Religion
Clauses to invalidate the types of legislation considered herein
would be inconsistent with their concerns.
BACKGROUND TO THE ABORTION-FIRST AMENDMENT
CONTROVERSY
The Abortion Controversy
Roe v. Wade' set the stage for the present first amendment
controversies by ruling that states can neither prohibit women from
electing an abortion for pregnancies in the first trimester nor adopt
regulations other than those related to maternal health for pregnancies between the first trimester and viability.' The decision in Roe
was based on a woman's right of privacy which the Supreme Court
found to be guaranteed by the fourteenth amendment's concept of
personal liberty.' This right of privacy, being a fundamental right,
requires a compelling state interest to justify any imposition of
limitations.7 Because the Court found no such state interest during
the first trimester, it struck down as unconstitutional a criminal
statute which prohibited abortions except when the mother's life
was endangered!
Since Roe v. Wade, the question has arisen whether this right
to have an abortion encompasses a. right for an indigent woman to
3. The allegations of those challenging legislation tending towards antiabortion interests will be stated throughout this note with no attempt to ascertain
their factual basis except insofar as reflected in judicial determinations. Some of the
complexities of ascertaining whether the pro-life view of abortion is essentially
religious will, however, be noted. See notes 64-67 infra and accompanying text.
4. 410 U.S. 113 (1973).
5. Id at 163, 164.
6. Id. at 153.
7. Id at 154-55.
8. Id. at 162-64; see also Doe v. Bolton, 410 U.S. 179 (1973).
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ABORTION AND RELIGION
have an abortion funded by Medicaid. Riders9 to the federal appropriations bills for Medicaid for the fiscal years of 1977 through
1979 have strictly limited the instances in which abortions may be
funded.' ° In fiscal year 1977, funding for abortions was limited by
the Hyde Amendment" to those cases in which the mother's life
would have been endangered by carrying the fetus to term. 2 For
fiscal years 1978 and 1979, the funding was expanded to also include
victims of rape or incest and instances in which carrying the fetus to
term would have resulted in "long-lasting physical health damage to
the mother."'3 In cases pending before the Supreme Court the constitutionality of these provisions has been challenged. 4
The Court has previously passed on a state's right, as a participant in the Medicaid program, 5 to exclude elective abortions from
9. A rider is a section or clause added to a legislative bill which changes or
supplements the original purport.
10. Act of Oct. 18, 1978, Pub. L. No. 95-480, § 210, 92 Stat. 1567 (fiscal year
1979); Act of Dec. 9, 1977, Pub. L. No. 95-205, § 101, 91 Stat. 1460 (fiscal year 1978);
Act of Sept. 30, 1976, Pub. L. No. 94-439, § 209, 90 Stat. 1418 (fiscal year 1977).
11. Act. of Sept. 30, 1976, Pub. L. No. 94-439, § 209, 90 Stat. 1418 (fiscal year
1977). The Hyde Amendment is a rider which provides: "None of the funds contained
in this Act shall be used to perform abortions except where the life of the mother
would be endangered if the fetus were carried to term." Id.
12. Id.
13. Act of Oct. 18, 1978, Pub. L. No. 95-480, § 210, 92 Stat. 1567; Act of Dec.
9, 1977, Pub. L. No. 95-205, § 101, 91 Stat. 1460. These riders, which are identical, provide:
None of the funds provided for in this Act shall be used to perform abortions except where the life of the mother would be endangered if the
fetus were carried to term; or except for such medical procedures
necessary for the victims of rape or incest, when such rape or incest has
been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and longlasting physical
health damage to the mother would result if the pregnancy were carried
to term when so determined by two physicians."
Id. These riders are also often referred to as the Hyde Amendment, though Congressman Hyde does not support their broader categories for abortion funding.
14. McRae v. Califano, No. 76 Cir. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris.
noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268); Zbaraz
v. Quern, 469 F. Supp. 1212 (N.D. Ill.), prob. juris. noted mem., sub nom. Williams v.
Zbaraz, 100 S. Ct. 447 (1979) (No. 79-4). The cases present both first and fifth Amendment challenges to Medicaid's restrictive funding of abortions. See notes 23-27 infra
and accompanying text.
15. For an explanation of the relationship between the federal and state
governments in the Medicaid program, see Note, Abortion, Medicaid, and the Constitution, 54 N.Y.U.L. REV. 120, 132-34 (1979).
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its funding." In Maher v. Roe 7 the Court upheld a state statute
which limited Medicaid benefits for the first trimester abortions to
those medically or psychiatrically necessary. 8 Opponents of the
legislation challenged it as being violative of the Equal Protection
Clause of the fourteenth amendment by its funding of childbirth but
not abortion. 9 The Court, however, found "a basic difference between direct state interference with a protected activity [as was
present in Roe v. Wade] and state encouragement of an alternative
activity consonant with legislative policy."'" Thus, since no suspect
classes were involved,2' all that was required was a rational relation
to a legitimate state interest, which the Court found in the state's
interest in the protection of potential human life.'
Since Maher, new challenges have been made to legislation denying Medicaid funds for abortions. These challenges have included
both a new equal protection argument" and the claim of a violation
of the Religion Clauses." The more recent equal protection attack
has pointed to the fact that while Medicaid funds all other medically
necessary surgical procedures, it will only fund those medically
necessary abortions which endanger a woman's life or threaten long
16. Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977). In
Beal, the Court held that a state statute limiting abortions to those medically
necessary, which included those threatening a woman's mental health, was not
violative of the statutory obligations imposed upon the state by virtue of its participation in the Medicaid program. Id. at 443-47.
17. 432 U.S. 464 (1977).
18. Id. at 480.
19. Id. at 470.
20. Id. at 475. The Court drew the analogy that the state's inability to deny
the constitutional right to a private education does not then foreclose the state from
adopting a policy choice which favors public education by funding only it. Id. at 476-77.
21. Id. at 470.
22. Id. at 478-79.
23. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 298-323 (E.D.N.Y. Jan.
15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268); Zbaraz v. Quern. 469 F. Supp. 1212 (N.D. Ill.), prob. juris. noted mem.,
sub nom. Williams v. Zbaraz 100 S. Ct. 447 (1979) (No. 79-4).
24. See McRae v. Califano, No. 76 Civ. 1804, slip. op. at 323-328 (E.D.N.Y. Jan.
15, 1980), prob. juris noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268); Woe v. Califano, 460 F. Supp. 234 (S.D. Ohio 1978); Right to Choose v.
Byrne, 165 N.J. Super. 443, 398 A.2d 587 (Super. Ct. Ch. Div. 1979). The Religion
Clauses arguments were suggested at least as early as April, 1975, when the U.S.
Commission on Civil Rights argued that a constitutional amendment designed to
nullify Roe v. Wade and Doe v. Bolton would create a conflict with the first amendment. U.S. COMMISSION ON CIVIL RIGHTS, CONSTITUTIONAL ASPECTS OF THE RIGHT TO LIMIT
CHILDBEARING (1975).
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ABORTION AND RELIGION
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lasting physical health damage."5 Two district courts have found
practice violative of the Equal Protection Clause." One of these
courts has also found the restrictive funding of abortions to
constitutionally infringe upon the right of indigent women to
free exercise of religion.27
this
two
unthe
Legislation restricting Medicaid's funding of abortions is not
the only type of abortion-related legislation which has been attacked
on first amendment grounds. Opponents of laws regulating the performing of abortions have likewise argued a violation of the Religion
Clauses. 8 This type of challenged legislation has, for example, required informed consent and a waiting period between the time a
woman gives written consent and the time of her abortion.29 An
25. The argument rests upon the premise that medically necessary abortions
are a broader class than those which threaten long lasting physical health damage to
the pregnant woman. See Zbaraz v. Quern, 469 F. Supp. 1212, 1219-20 (N.D. Ill.), prob.
juris. noted mem., sub nom. Williams v. Zbaraz, 100 S. Ct. 447 (1979) (No. 79-4).
26. See cases cited note 23 supra.
27. McRae v. Califano, No. 76 Civ. 1804, slip. op. at 328 (E.D.N.Y. Jan. 15,
1980) prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No.
79-1268).
28. See Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F.
Supp. 1172 (N.D. Ohio 1979); Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb.
Nov. 9, 1979).
29. See Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F.
Supp. 1172, 1186 (N.D. Ohio 1979); Womens Services v. Thone, 48 U.S.L.W. 2392-2393
(D. Neb. Nov. 9, 1979). Among the provisions attacked in Akron Center were the
following:
1870.05 NOTICE AND CONSENT
A. No physician shall perform or induce an abortion upon an unmarried
pregnant woman under the age of 18 years without first having given at
least twenty-four (24) hours actual notice to one of the parents or the
legal guardian of the minor pregnant woman ....
1870.06 INFORMED CONSENT
A. An abortion otherwise permitted by law shall be performed or induced
only with the informed, written consent of the pregnant woman ....
B. In order to assure that the consent for an abortion is truly informed
consent, an abortion shall be performed or induced upon a pregnant
woman only after she . . . [has] been orally informed by her attending
physician of the following facts . ..
3. That the unborn child is a human life from the moment
of conception ....
4. That her unborn child may be viable, and thus capable of
surviving outside of her womb, if more than twenty two (22)
weeks have elapsed from the time of conception ....
5. That abortion is a major surgical procedure ....
7.
That numerous public and private agencies and services
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Establishment Clause attack on such legislation raises the same
issues as those presented with respect to legislation restricting the
government's funding of abortions."
The Religion Clauses
The Supreme Court has stated that the premise underlying the
Religion Clauses is "that both religion and government can best
work to achieve their lofty aims if each is left free from the other
within its respective sphere."3 In attempting to determine the
nature of the separation between government and religion intended
by these clauses, the Court has investigated the history surrounding
their drafting.2 Though the intention is not easily gleaned from this
history,3 the Court in an early" consideration of the Establishment
Clause concluded that neither the federal nor state governments
"can pass laws which aid one religion, aid all religions, or prefer one
are available to assist her during her pregnancy and after
the birth of her child if she chooses not to have the abortion ....
Arkon, Ohio, Ordinance 160-1978 (Feb. 28, 1978), reprinted in Akron Center, 479 F.
Supp. at 1210-11 app.. Of these provisions, the court found sections 1870.05(A) and
1870.06(B) violative of due proces. Akron Center, 479 F. Supp. at 1201-03. Section
1870.06(A) was upheld. Id. at 1202.
30. The Free Exercise Clause issues differ somewhat between the two types
of legislation because of their different effects. While a lack of govenmental funding
may mean some indigent woman may be unable to obtain an abortion, the requirements of informed consent and a waiting period could only very indirectly have
that same result. In Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9,
1979), the court rejected the argument that the requirements of informed consent and
a waiting period deny the free exercise of religion on the ground that the absence of
such requirements would not further the tenets of any religion. Id. at 2392.
In Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp.
1172 (N.D. Ohio 1979), the court made no finding as to whether the informed consent
provision attacked therein violated the free exercise right because the court found the
provision violative of a woman's right to privacy. Id. at 1203; see also note 29 supra.
31. McCollum v. Board of Educ., 333 U.S. 203, 212 (1948). Actually this was
but one of three separate views amongst the Founding Fathers, and represented
somewhat the middle ground. The other two were, first, that the church must be free
from the state in order to avoid its corruption, and, second, that there must be a wall
separating church and state in order to safeguard secular interests. L. TRIBE.
AMERICAN CONSTITUTIONAL LAW 816-17.
32. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 8-16 (1947); Id. at 31-43
(Rutledge, J., dissenting); McCollum v. Board of Educ., 333 U.S. 203, 244-48 (1948);
Walz v. Tax Comm'n of New York, 397 U.S. 664, 681-87 (1970) (Brennan, J., concurring).
33. L. TRIBE, supra note 31, at 816-19.
34. Though early in the development of the doctrines of the Establishment
Clause, the case was as recent as 1947. Everson v. Board of Educ., 330 U.S. 1 (1947).
See also Reynolds v. United States, 98 U.S. 145, 163-64 (1879).
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religion over another." 5 The Court has since sought to adopt a position of neutrality toward religion," yet recognizing that the first
amendment does not require in each and all respects a separation of
church and state. 7
In seeking to implement this requirement of neutrality the
Court has developed a three-prong test. "[T]o pass muster under the
Establishment Clause the law in question, first, must reflect a clearly
second, must have a primary effect
secular legislative purpose ....
that neither advances nor inhibits religion .... and third, must avoid
excessive entanglement with religion. . . ."I Legislation tending to
support anti-abortion interests allegedly fails all three of these tests,
in addition to violating the Free Exercise Clause. First, such legislation has no secular purpose because it reflects, and is motivated by,
a religious belief that the fetus is human. 9 Second, the legislation
purportedly has both a primary effect which advances religion by
putting the power and prestige of government behind one religious
view of abortion, and a primary effect of inhibiting religion by
burdening women in their religious and conscientious liberty to terminate an unwanted pregnancy. 0 Third, the legislation causes
political division along religious lines, and hence, excessive entanglement between government and religion. 1 The Free Exercise Clause
is also allegedly violated by legislation restricting the Medicaid
35. Everson v. Board of Educ., 330 U.S. 1, 15 (1947). Mr. Chief Justice Burger
later expressed some doubt as to the accuracy of this statement. Walz v. Tax Comm'n
of New York, 397 U.S. 664, 670 (1970).
36. See, e.g., School Dist. v. Schempp, 374 U.S. 203, 222 (1963).
37. See Zorach v. Clauson, 343 U.S. 306, 312 (1952); see also Walz v. Tax
Comm'n of New York, 397 U.S. 664, 670 (1970).
38. Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 773 (1973).
39. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 323 (E.D.N.Y. Jan 15,
1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No.
79-1268); Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9, 1979); Akron
Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172, 1189 (N.D.
Ohio 1979); Right to Choose v. Byrne, 165 N.J. Super. 443, 393 A.2d 587, 595 (Super.
Ct. Ch. Div. 1979).
40. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 324-25 (E.D.N.Y. Jan.
15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268); Womans Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9, 1979);
Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172, 1194
(N.D. Ohio 1979).
41. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 325 (E.D.N.Y. Jan. 15,
1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No.
79-1268); Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp.
1172, 1195 n.15 (N.D. Ohio 1979); Right to Choose v. Byrne, 165 N.J. Super. 443, 398
A.2d 587, 595 (Super. Ct. Ch. Div. 1979).
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funding of abortions because it denies indigent women the ability to
make a religious or conscientious choice to have an abortion. 2
THE SECULAR PURPOSE REQUIREMENT
Opponents of legislation restricting the funding or performance
of abortions argue that such legislation does not possess the secular
legislative purpose required by the Establishment Clause. The argument that these abortion laws lack the required purpose begins by
seeking to show that the purpose of the laws is that of protecting
the lives of full human beings.'3 The belief that the fetus is a full
human being, the argument continues, is a religious belief, and as
such, the purpose of these laws is rooted in religious belief."
Therefore, challengers contend, because there is no secular justification for the legislation, it has no secular purpose.
Central to this argument is the proposition that when legislation has a purpose rooted in religious beliefs and values, and the
legislation is the result of support from religious groups, the legislation has no secular purpose. The inquiry into religious motivation
called for by this proposition finds support as being pertinent to the
search for a secular purpose in a statement made by Justice Brennan:
Appellant has raised doubt that the purpose ascribed to
the provision by the State is, in fact, its actual purpose....
Although the State's ascribed purpose is conceivable, ...
if it were necessary to address appellant's contention we
would determine whether that purpose was, in fact, what
the provision's framers sought to achieve. In contrast to
the general rule that legislative motive or purpose is not
a relevant inquiry in determining the constitutionality of a
statute, . . . our cases under the Religion Clauses have
uniformly held such an inquiry necessary because under
the Religion Clauses government is generally prohibited
from seeking to advance or inhibit religion."5
42. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 326-28 (E.D.N.Y. Jan.
15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268); Right to Choose v. Byrne, 165 N.J. Super. 443, 398 A.2d 587, 596 (Super.
Ct. Ch. Div. 1979).
43. See cases cited note 39 supra.
44. See cases cited note 39 supra.
45. McDaniel v. Paty, 435 U.S. 618, 636 n.9 (1978) (Brennan, J., concurring)
(citations omitted). A determination as to secular purpose was unnecessary because
the case was decided on free exercise grounds. Id. at 629.
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Similarly, with respect to the abortion legislation, the inquiry into
the legislative motive is arguably necessary in order to ascertain
whether a plausible secular purpose is, in fact, the actual purpose.
Those challenging abortion legislation that reflects anti-abortion
concerns have argued that the actual purpose of such legislation is not
that of protecting potential human life, as the Supreme Court has
hypothesized."6 Rather, opponents contend, the purpose is to protect
what is viewed as actual human life.47 Thus, on the basis of this
claim that a plausible secular purpose is not the actual purpose,
Justice Brennan's statement4" tends to indicate that an investigation
of the legislative motive is appropriate.
Two cases 49 in particular, cited by Justice Brennan," could be
interpreted as supporting the need for an examination of the
legislative motive for abortion legislation. In Epperson v.
1
the Court looked to the motivation of a statute which
Arkansas,"
prohibited the teaching of evolution in the public schools.52 Finding
"no doubt that the motivation for the law was . . .to suppress the
teaching of a theory which, it was thought, 'denied' the divine creation of man,"53 the Court held the statute to be in violation of the
Establishment Clause.5 Likewise, motivation was considered in
McGowan v. Maryland,5 in which Sunday Closing Laws were
challenged as violative of the Establishment Clause. The challengers
46. The Supreme Court in both Maher v. Roe, 432 U.S. 464 (1977), and Roe v.
Wade, 410 U.S. 113 (1973), recognized "the State's strong interest in protecting the
potential life of the fetus." Maher, 432 U.S. at 478; Roe, 410 U.S. at 154, 162.
47. Plaintiffs' First Amendment Brief at 234, McRae v. Califano, No. 76 Cir.
1804 (E.D.N.Y. Jan. 15, 1980), prob. juris, noted mem., sub nom. Harris v. McRae, 48
U.S.L.W. 3514 (1980) (No. 79-1268). The other first amendment-abortion cases do not
disclose whether challengers sought to distinguish between the purpose they alleged
and this recognized state interest.
48. See text accompanying note 45 supra.
49. Epperson v. Arkansas, 393 U.S. 97 (1968); McGowan v. Maryland, 366 U.S.
420 (1961).
50. McDaniel v. Paty, 435 U.S. 618, 636 n.9 (1978) (Brennan, J., concurring).
51. 393 U.S. 97 (1968).
52. Id. at 107-09.
53. Id. at 109.
54. Id. The Court looked to the popular movement in making its determination that "fundamentalist sectarian conviction was and is the law's reason for existence." Id. at 108. A typical advertisement read: "All atheists favor evolution. If you
agree with atheism vote against Act No. 1. If you agree with the Bible vote for Act
No. 1. . . . Shall conscientious church members be forced to pay taxes to support
teachers to teach evolution which will undermine the faith of their children?" Id at
108, n.16.
55. 366 U.S. 420 (1961).
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alleged that the purpose of the laws was to encourage church attendance and membership.' The Court, after an examination of the
history of Sunday Closing Laws,57 found that though the original
laws "were motivated by religious forces,"' the laws had later obtained the secular purpose of setting aside a day of rest and recreation. 9 Thus, opponents of certain abortion legislation argue, just as
the Supreme Court has previously sought to ascertain legislative
motive in its Establishment Clause considerations, such a determination is required with respect to abortion laws.
The challengers contend that the motive underlying laws which
restrict the funding or performance of abortions is found in the opinion that the fetus is a person, and that this opinion is a religious
belief.6 0 Generally, defenders of the legislation would not deny that
the opinion of the fetus as a person was a motivating factor."' The
basis for claiming this opinion to be a religious belief rests in the
observation that the personhood of the fetus is not a scientific question, but rather a question of values. Challengers have argued, for
example, that "it is axiomatic that science cannot decide when the
56. Id. at 431.
57.
Id.at 431-40.
58. Id. at 431.
59. Id. at 449.
60. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 323 (E.D.N.Y. Jan. 15,
1980), prob. juris. noted mere., sub nom. Harris v. McRae 48 U.S.L.W. 3514 (1980) (No.
79-1268); Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9, 1979); Akron
Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172, 1189 (N.D.
Ohio 1979).
61. The ordinance under attack in Akron Center for Reproductive Health,
Inc. v. City of Akron, 479 F. Supp. 1172 (N.D. Ohio 1979) was prefaced by a number of
"whereas" clauses, one of which stated:
WHEREAS, it is the finding of Council that there is no point in time between the union of sperm and egg, or at least the blastocyst stage and
the birth of the infant at which point we can say the unborn child is not a
human life, and that the changes occurring between implantation, a sixweeks embryo, a six-month fetus, and a one-week-old child, or a mature
adult are merely stages of development and maturation; ....
Id. at 1189.
Congressional speakers in behalf of the strict federal restrictions on Medicaid's
funding of abortion were similarly unsecretive of their view of the fetus. Congressman
Hyde, though denying that his view was essentially religious, clearly believed the
fetus to 5e a person:
What is it that is being aborted? Is it a chicken? Is it a vegetable? ...
No, it is a human being.
Theology does not say it is a human being; biology says it is a
human being. Theology does not say, "Thou shalt not kill a fetus"; it is
biology that says, "Thou shall not kill a fetus".
123 Cong. Rec. H6084 (daily ed. June 17, 1977).
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value of 'person' should be ascribed to prenatal life ....
Science
deals in discovery and description of objective data. Value is derived
from that which a person holds to be of importance, in this case of
ultimate importance." 2 Pertinent to this line of reasoning, Justice
Frankfurter stated:
The Establishment Clause withdrew from the sphere of
legitimate legislative concern and competence a specific,
but comprehensive, area of human conduct: man's belief or
disbelief in the verity of some transcendental idea and
man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of
legislation .... 13
Thus, the argument concludes, the transcendental nature of the
belief that the fetus is human makes it religious and puts the legislation it motivates outside the sphere of legitimate legislative concern.
An Analysis of the Secular Purpose Argument
In the decisions addressing this argument the courts have not
been convinced that the opinion that the fetus is a person is solely a
religious belief." Scientific-philosophical reasons for this view of the
62. Plaintiffs' First Amendment Brief at 250-51, McRae v. Califano, No. 76
Civ. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae,
48 U.S.L.W. 3514 (1980) (No. 79-1268). Plaintiffs quoted from the trial testimony of
Dean Wogman: "I think I speak for virtually all theologians and ethicists at this point
in saying a descriptive science cannot establish the value of an entity. In order to
establish the value of an entity you have to establish its relationship to ultimate reality." Plaintiffs' Brief at 251.
63. McGowan v. Maryland, 366 U.S. 420, 465-66 (1961) (Frankfurter, J., concurring).
64. McRae v. Califano, No. 76 Civ. 1804, slip op at 323-24 (E.D.N.Y. Jan. 15,
1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No.
79-1268); Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9, 1979); Akron
Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172, 1189 (N.D.
Ohio 1979); Right to Choose v. Byrne, 165 N.J. 443, 398 A.2d 587, 595 (Super. Ct. Ch.
Div. 1979).
In McRae, the court stated:
That the enactments reflect, if imperfectly, one religious view, if it
were true, would not be decisive. The enactments deal with human conduct, and that conduct in an area related to human life. They reflect a
traditionalist view more accurately than any religious one, a view that
was reflected in most state statutes of a generation ago. The purpose of
the "Hyde amendments" [is] the prevention of abortions, not an identifiably religious purpose, or one that became religious because, after
1973, the most vigorous spokesman for it put their case in religious terms,
and grounded them in religious reasons.
McRae, slip op. at 323-24.
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fetus also being possible, 5 there has generally been a failure to prove
that religious, as opposed to philosophical, beliefs provided the actual motivation.6 Given the possibility, however, of a greater showing of the involvement of religious beliefs, or different inferences being drawn from the facts which have been adduced, 7 some broader
considerations become necessary.
65. A noteworthy example of non-religious reasons being advanced in behalf
of the personhood of the fetus is found in the West German abortion decision. Judgment of Feb. 25, 1975, 39 BVerfGE 1, translated in 9 J. MAR. J. PRAC. & PROC. 605
(1976) (trans. by R. Jonas and J. Gorby) [hereinafter Translation]. The case arose after
the West German legislature passed laws which would allow abortions during the first
twelve weeks of pregnancy, and abortions thereafter when the continuation of the
pregnancy would present a serious threat to a woman's health. See Translation at
611-12. These laws were challenged as being violative of the German constitutional
" See Translation at 638. The German
provision: "Everyone has a right to life ....
Court in seeking to ascertain whether the fetus fit within the category of "everyone",
stated:
Life, in the sense of historical existence of a human individual, exists according to definite biological-physiological knowledge, in any case, from
the 14th day after conception (nidation, individuation) .... The process of
development which has begun at that point is a continuing process which
exhibits no sharp demarcation and does not allow a precise division of the
various steps of development of human life. The process does not end
even with birth; the phenomena of consciousness which are specific to the
human personality, for example, appear for the first time a rather long
time after birth. Therefore, the protection of [the constitutional provision]
cannot be limited either to the "completed" human being after birth or to
the child about to be born which is independently capable of living. The
right to life is guaranteed to everyone who "lives"; no distinction can be
made here between various stages of the life developing itself before
birth, or between unborn and born life.
Translation at 638.
66. See cases cited note 64 infra.
67. For example, Judge Dooling makes the factual determination that "the
pro-life effort, of which the organized Roman Catholic effort has been the most active
component, has made use of the political process, and played a significant part in bringing about Congressional legislation on the subject [of the funding of abortions.]" McRae
v. Califano, No. 76 Cir. 1804, slip. op. at 281 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted
mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268). He nevertheless concludes that the pro-life view is more of a traditional view, than a religious
one. See note 64 supra. Some, on the other hand, might contend that if a church has
played an active role in the pro-life movement, at least that church's view of the fetus
is a religious one. Under this reasoning, a determination would be required as to
whether the view held by any active church was predominant. If so, then the predominant view would be religious.
This reasoning, however, raises some very complex questions concerning what
makes a certain belief religious. It is entirely possible that a church might claim divine
revelation for the proposition that to murder a person is sinful, but claim no such
revelation for the question of whether the fetus is a person. The church might then
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Two fundamental questions, not yet directly addressed by the
Supreme Court, are raised by the argument that the challenged
abortion legislation has no secular purpose. These are the related
questions of what distinguishes a secular purpose from a non-secular
purpose and what role does legislative motivation have in the determination of a secular purpose. Opponents' arguments, if they are to
succeed, must obtain the Court's acceptance of two propositions:
first, that underlying religious beliefs and religious support are
alone sufficient to render a purpose non-secular; second, that an inquiry into legislative motivation is then permissible for the purpose
of finding such religious belief and support.
The purpose argued to be non-secular in the abortion context
differs significantly from the non-secular purposes which the
Supreme Court has thus far considered. Most of the Establishment
Clause cases that the Court has addressed have dealt with education. 8 In such cases, the alleged non-secular purpose generally would
be that of aiding, in one. way or another, the advancement of
religious beliefs through teaching.69 In other cases, purposes such as
the encouragement of Sunday worship," or the aiding of churches
through tax exemptions,71 were alleged.
The purpose, however, of the abortion legislation being attacked
is contended to be the protection of what is viewed as actual human
beings." As such, the purpose is not alleged to be the advancement
of religious belief or the encouragement of worship. Religious belief
is implicated only by being the basis from which the concern for the
fetus has arisen. Thus, the question presented in this context is
whether purposes which are not orientated towards the advancelook to philosophic or scientific arguments concerning the personhood of the fetus. It
could thereafter conclude that either the fetus is a person, or if there is doubt, it is
better to consider the fetus as such in order not to transgress the command not to kill.
Though the importance of the question of the personhood of the fetus would be rooted,
for that church, in a religious belief, the answer would not be so clearly religious.
Arguably at least, the church has merely adopted an interpretation of scientific and
philosophic considerations. Congressman Hyde, for similar reasons, has argued that his
view of the fetus is non-religious. See note 61 supra.
68. See, e.g., Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973); Tilton
v. Richardson, 403 U.S. 672 (1971); Lemon v. Kurtzman, 403 U.S. 602 (1971); Epperson
v. Arkansas, 393 U.S. 97 (1968); Board of Educ. v. Allen, 392 U.S. 236 (1968); School
Dist. v. Schempp, 374 U.S. 203 (1963); Everson v. Board of Educ., 330 U.S. 1 (1947).
69. See generally cases cited in note 68 supra.
70. McGowan v. Maryland, 366 U.S. 420, 431 (1961).
71. Walz v. Tax Comm'n of New York, 397 U.S. 664 (1970).
72. See text accompanying note 43 supra
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ment of religious belief or worship are non-secular by virtue of their
having been motivated by religious belief.
The motivational aspect of the present claim of no secular purpose is further disclosed by the Supreme Court's recognition of a
strong state interest in the protection of the potential life of the
fetus" and in the encouragement of childbirth.74 Though litigants
have implicitly argued that this state interest recognized by the
Court is legitimate only when the state views the fetus as potential,
not actual, human life,"5 this proposition is not supported by the
Court's decisions. The Court's emphasis has been that since at least
potential life is involved, the state has a legitimate interest in the
fetus." In the cases in which this state interest was recognized,
73. Maher v. Roe, 432 U.S. 464, 478 (1977); Roe v. Wade, 410 U.S. 113, 154,
162 (1973).
74. Beal v. Doe, 432 U.S. 438, 446 (1977); Poelker v. Doe, 432 U.S. 519, 521
(1977).
75. See notes 46-47 supra and accompanying text.
76. In Roe v. Wade, 410 U.S. 113 (1973), the Court, in considering the state's
position that the fetus is human life, stated:
Logically, of course, a legitimate state interest in this area need not stand
or fall on acceptance of the belief that life begins at conception or at some
other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential
life is involved, the State may assert the interests beyond the protection
of the pregnant woman alone.
Id. at 150 (emphasis in original). Whether thefetus is more than potential human life,
the Court refused to decide:
We need not resolve the difficult question of when life begins. When
those trained in the respective disciplines of medicine, philosophy and
theology are unable to arrive at any consensus, the judiciary, at this point
in the development of man's knowledge, is not in a position to speculate
as to the answer.
Id. at 159. In that the Court refused to decide whether the fetus is actual human life,
the implications of the Court's position cannot plausibly be that legislators must decide
that the fetus is not actual human life, but only potential life, before the legislation
they enact represents a legitimate state interest.
In McRae v. Califano, No. 76 Civ. 1804, (E.D.N.Y. Jan. 15, 1980), prob. juris.
noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268), Judge
Dooling found the secular purpose argument to be foreclosed at this point:
The underlying difficulty with the plaintiffs' argument that there is here
no clearly secular legislative purpose ... is that the argument treats Roe
v. Wade as removing the issue from the field of secular action, and as forbidding reference to a purpose conceptionally at war with Roe v. Wade as
a secular purpose. While Roe v. Wade argues for the measures' invalidity
under the Fifth Amendment at least, it does not make the enactments
any less secular in their legislative purpose. On its face such legislation,
marking explicit disapproval of abortion in most cases, reflects a general
and long held social view . . ..
McRae, slip op. at 324.
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however, the Court did not consider the claim of an Establishment
Clause violation by virtue of the impermissible intervention of
religious belief. Thus, the question restated becomes whether
legislation that represents an otherwise legitimate state interest
can fail the secular purpose test because religious beliefs have been
a primary motivational factor.
The Court has not yet given a clear answer to this question.
Though the previously noted statement by Justice Brennan 7 could
be interpreted as indicating that underlying religious beliefs could
render a purpose non-secular, the cases which he cited do not clearly
represent this proposition. 8 In the cited cases of Epperson v. Arkansas and McGowan v. Maryland, the Court did consider religious
motivation in its determination as to secular purpose.79 However, the
consideration was not necessarily for the purpose of discovering
religious motivation per se.8" The Court's investigation alternatively
77. See text accompanying note 45 supra.
78. The cases cited by Justice Brennan were Epperson v. Arkansas, 393 U.S.
97, 109 (1968), McGowan v. Maryland, 366 U.S. 420, 431-45 (1961), and Grosjean v.
American Press Co., 297 U.S. 233, 250-51 (1936). McDaniel v. Paty, 435 U.S. 618, 636
n.9 (Brennan, J. concurring). For a discussion of Grosjea, see United States v.
O'Brien, 391 U.S. 367, 384-85 (1968).
79. Epperson v. Arkansas, 393 U.S. 97, 109 (1968); McGowan v. Maryland, 366
U.S. 420, 431 (1961). See notes 51-59 supra and accompanying text.
80. See Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F.
Supp. 1172, 1190-94 (N.D. Ohio 1979).
The text presupposes that it is possible to draw a meaningful distinction between religious motivation and nonsecular purposes. This distinction would parallel the
difference between the question "what is the law intended to do?" and the question
"why did the law's supporters value the intended result?" The secular purpose test
might be identified, consistent with its application to the present, with the former
question and its concern limited to the inquiry of whether a law is directly or indirectly intended to aid in the propagation of religious beliefs or the advancement of religious institutions. See text accompanying notes 68-71 supra, and 82-83 infra; see also School
Dist. v. Schempp, 374 U.S. 203, 222 (1963) (indicating that the question under the
secular purpose test is whether the purpose of the law is to advance religion).
Religious motivation could be identified with the second question, and as such, a determination as to whether a law is religiously motivated would be concerned with identifying not the intended effect of a law, but rather the nature of the reasons why
legislators desired the intended effect. If such distinction is drawn, then although
religious motivation might be probative of a non-secular purpose when the nature of a
law's purpose is uncertain, it would not necessarily imply such a purpose. This note
argues that there are at least two problems with the contrary position that religious
motivation is per se impermissible. First, because of the difficulty in arriving at a
judicial definition of religion, to deem religious motivation impermissible would make
the identification of legitimate motives for legislative action difficult, if not impossible.
See text accompanying notes 184-95 infra. Second, such treatment of religious motives
would do violence to the framers' intent. See text accompanying notes 196-208 infra.
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could be understood as an attempt to discern whether there were
any plausible secular purposes.' In both cases the alleged nonsecular purposes involved the advancement of religious beliefs or
worship. In Epperson v. Arkansas, a statute prohibiting the
teaching of evolution was alleged to be for the purpose of preventing the teaching of a theory which denied the Genesis story of creation.2 In McGowan v. Maryland, a Sunday Closing Law was alleged
to be for the purpose of encouraging church membership and worship. 3 Such purposes on their face clearly are concerned with the advancement of religious beliefs and worship. Thus, a consideration of
the legislative motives would be pertinent to a determination of
whether these facially religious purposes were, in fact, the actual
purposes.
The abortion legislation being challenged, however, does not
have a facially religious purpose. The purpose of protecting the
fetus or encouraging childbirth is claimed to be non-secular only by
virtue of the motivation provided by the allegedly religious belief
that the fetus is a person. Therefore, the religious motivation
underlying abortion legislation is relevant only if the proposition is
accepted that a purpose, not facially religious, could be deemed to
be non-secular by the fact that the motivation for that purpose
found its source in religious beliefs.
To adopt this proposition, however,
ception to the fundamental principle that
down an otherwise constitutional statute
illicit motive."84 Though Justice Brennan
would be to create an exthe Court "will not strike
on the basis of an alleged
suggests that this excep-
See note 80 supra. See also L. TRIBE, supra note 31, at 835-37.
See Epperson v. Arkansas, 393 U.S. 97, 109 (1968).
See McGowan v. Maryland, 366 U.S. 420, 431 (1961).
United States v. O'Brien, 391 U.S. 367, 383 (1968). The Court reasoned:
Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation, the
Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in
this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to
void a statute that is, under well-settled criteria, constitutional on its
face, on the basis of what fewer than a handful of Congressmen said about
it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially
on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if
the same or another legislator made a "wiser" speech about it.
Id. at 383-84. The inquiry into motives sought with respect to abortion legislation is
81.
82.
83.
84.
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tion has already been made,8 5 the cases he cites do not clearly represent this. Therefore, not yet directly answered are the questions of
whether a statute not facially presenting a religious purpose can be
declared to have no secular purpose because of underlying religious
beliefs, and whether an investigation of legislative motives is then
appropriate to ascertain the presence of such beliefs."
THE NON-RELIGIOUS EFFECT REQUIREMENT
The Establishment Clause requires not only that a law have a
secular purpose, but also that it have "a primary effect that neither
advances nor inhibits religion."88 This test is independent of the
secular purpose requirement. Thus, it is possible, in fact not uncommon, for a law to have a secular purpose and yet an effect which advances or inhibits religion. Though the test is stated as prohibiting
"primary" religious effects, actually the test is stricter than the
term "primary" indicates. The inquiry may continue past a primary
secular effect to determine whether there is a non-primary direct effect of advancing religion." Only effects which remotely or incidentally advance or inhibit religion are clearly safe.
The requirement of non-religious effect cuts two ways. The effect cannot advance religion and it cannot inhibit religion. As such,
this test embodies the co-guarantees of the Religion Clauses and emphasizes that the prohibitions against either establishing religion or
denying its free exercise are ultimately concerned with religious
liberty. The Establishment Clause works together with the Free Experhaps even more problematic than the inquiry sought in O'Brien. In O'Brien the
Court was asked to determine whether the "purpose" of Congress was 'to suppress
freedom of speech." Id. at 382-83. The purpose of the abortion laws being challenged,
however, is quite clear, i e., to discourage abortions. The controversy under the
Establishment Clause, then, concerns why this purpose was important to the
legislatures who enacted such laws. In that even within the value structure of any
given legislator there may be numerous influences, any such inquiries might prove to
be extremely complex.
85. See text accompanying note 45 supra.
86. See text accompanying notes 77-83 supra; see also Akron Center for
Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172, 1189-94 (N.D. Ohio
1979).
87. Some implications of these questions are considered below. See notes
183-208 infra and accompanying text.
88. Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 774 (1973).
89. See, e.g., id.; Tilton v. Richardson, 403 U.S. 672, 678-79, 682-84 (1971).
90. Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 783 n.39 (1973).
91. L. TRIBE, supra note 31, at 840.
92. See School Dist. v. Schempp, 374 U.S. 203, 256 (1963) (Brennan, J., concur-
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ercise Clause to preserve religious liberty in that the State is just as
unable to disparage one religion by establishing another as it is to
interfere with the free exercise of a religion. 3
The overlap of the Free Exercise Clause with the requirement
that a law not have an effect which inhibits religion is readily apparent. To have an effect which inhibits a religion is to deny the
free exercise of that religion. Thus, the argument that some abortion legislation has an effect of inhibiting religion will be left, not inappropriately, to the discussion of the argument that the legislation
4
impermissibly interferes with the free exercise of religion.1
The Argument of a Religious Effect
Those attacking the constitutionality of laws restricting the
funding or performance of abortions have contended that such laws
have the effect of advancing one religious view of abortion. This effect purportedly results because through such laws the government
gives symbolic support to the religious view that the fetus is a person. Further, challengers assert, such laws have the effect of coercing pregnant women into conformity with this religious view.
Underlying the requirement that a law have an effect which
does not advance religion is the principle that the Establishment
Clause prohibits the state from becoming actively involved in
religious activity. 7 Thus, public school facilities cannot be used for
religious education. Nor can a state or school board require daily
Bible readings or prayers in the schools, even though students who
93. See note 92 supra.
94. See notes 140-82 infra and accompanying text.
95. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 324-25, (E.D.N.Y. Jan.
15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268); Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9, 1979);
Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172,
1194-95 (N.D. Ohio 1979).
96. See, e.g., McRae v. Califano, No. 76 Civ. 1804, slip op. at 324-325 (E.D.N.Y.
Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514
(1980) (No. 79-1268).
97. Chief Justice Burger stated: "[Flor the men who wrote the Religion
Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."
Walz v. Tax Comm'n of New York, 397 U.S 664, 668 (1970).
98. Illinois ex. reL McCollum v. Bd. of Educ., 333 U.S. 203 (1948). The Court
found the use of the school's facilities for voluntary religious classes "beyond all question a utilization of the tax-established and tax-supported public school system to aid
religious groups to spread their faith." Id. at 210.
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19801
do not wish to participate are excused. 9 Likewise, financial
assistance which works as an incentive to parents to send their
children to sectarian schools is prohibited because of the effect of
advancing the religious mission of those schools. 0 Even the federal
financing of a structure which twenty years in the future might be
used for religious purposes is unconstitutional because of the effect
it might have for advancing religion.''
Challengers have contended that by subjecting legislation
restricting the funding or performance of abortions to this close
scrutiny, such legislation is seen to have the effect of advancing one
religious view of abortion. In one case litigants noted the Congressional concern over which way the record would stand in the abortion debate and alleged that the sponsors of the legislation were
concerned not with its impact, but rather with principles of life and
death, as well as legitimizing their own religious belief.02 The
litigants contended that pro-choice theologians saw their religious
beliefs deprecated and perceived the law as advancing the tenets of
an opposing religion, and that this signaled an impermissible
effect.' 3 Therefore, because the issue was perceived as religious,
state entanglement with that issue destroyed the required neutrality and impermissibly put the power and prestige of government
behind the religious belief that the fetus is a person.'
This symbolic impact is not the only alleged prohibited effect of
legislation embodying anti-abortion interests for it also coerces pregnant women into conformity with one religious view of abortion.'
Due to the restrictions on the Medicaid funding of abortion, many in99.
School Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421
(1962).
100. Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 786 (1973).
101. Tilton v. Richardson, 403 U.S. 672, 683 (1971).
102. Plaintiffs' First Amendment Brief at 268-69, McRae v. Califano, No. 76
Civ. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae,
48 U.S.L.W. 3514 (1980) (No. 79-1268).
103. Id.
104. In Engel v. Vitale, 370 U.S. 421 (1962), the Court stated:
The First Amendment was added to the Constitution to stand as a
guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer
the American people can say-that the people's religions must not be subjected to the pressures of government for change each time a new
political administration is elected to office.
Id. at 429-30.
105. See, e.g., Akron Center for Reproductive Health, Inc. v. City of Akron,
479 F. Supp. 1172, 1194 (N.D. Ohio 1979).
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digent women are discouraged, and at times prevented, from obtaining an abortion. As such, just as tuition grants are an impermissible
incentive to parents to sent their children to sectarian schools,1 6 opponents contend that the Medicaid funding of only childbirth works
as an impermissible incentive to conform to the state-sponsored
religious view and to forego the abortion choice." 7
An Analysis of the Religious Effect Argument
The primary obstacle to arguing that abortion-related legislation advances religion is the difficulty in showing how such legislation tends to cause anyone to adopt any religious belief.0 8 In other
words, the problem is to show that there is more than an incidental
or remote advancement of religion in any identifiable way.
Challengers have sought to show such an advancement by contending, first, that there was a legislative attempt to use the legislation
to symbolically take a religious stand on the abortion issue, and, second, that the legislation has provided an incentive to women to conform their conduct to this religious view.
Opponents to the legislation restricting the Medicaid funding of
abortion have contended that there existed a Congressional concern
to legitimatize one religious view of abortion by the enactment of
the legislation, and that therefore the legislation represents a symbolic preference for that religious view." 9 However, because the
legislation does not on its face implicate religion,"0 the question of
whether an inquiry into legislative motivation is appropriate
becomes once again a threshold question. If such an inquiry is not
permissible for the purpose of determining whether an alleged im106. Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 786 (1973).
107. See, e.g., Plaintiffs' First Amendment Brief at 274, McRae v. Califano, No.
76 Cir. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v.
McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268).
108. In the decisions rendered addressing arguments that abortion-related
legislation advances religion, the courts rejected the arguments primarily on the
ground that such legislation would have only a remote effect, if any, of causing anyone
to adopt any religious beliefs. Akron Center for Reproductive Health, Inc. v. City of
Akron, 479 F. Supp. 1172, 1194-95 (N.D. Ohio 1979); Womens Services v. Thone, 48
U.S.L.W. 2392 (D. Neb. Nov. 9, 1979); cf. McRae v. Califano, No. 76 Civ. 1804, slip op.
at 324-25 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae,
48 U.S.L.W 3514 (1980) (No. 79-1268) (The court found the conduct exacted by the law
to be the traditional submission to childbirth and that "no connection to establishmentarianism is present in the kind of effect on conduct that the enactments were intended to
have." Id.).
109. See notes 102-03 supra and accompanying text.
110. See notes 11 and 13 supra.
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permissible motive was present, then the claim of a religious symbolic effect is foreclosed. Thus, though it might be argued that laws
reflecting an anti-abortion sentiment put the power and prestige of
government behind one view of abortion, there is no basis for finding this view to be a religious view without delving into legislative
motivation.
However, even if such a Congressional concern were to be
taken into account, there still may not be more than an incidental or
remote effect of advancing religion. Only those who were aware of
the nature of the Congressional debates would have any knowledge
of any religious beliefs that were involved. Further, mere knowledge
of any underlying religious concerns that existed in Congress, or
even of a Congressional attempt to take a symbolic stance, would
very likely have little tendency to advance the same beliefs. Thus,
the effect of any such symbolic Congressional stance may be very
limited.
Similar problems exist with the argument that the incentive to
forego an abortion provided by the legislation which prohibits
Medicaid from funding it works to advance religion. While it may be
true that some women will have to forego an abortion because
Medicaid will only fund childbirth, this fact alone will not advance a
religious belief about abortion in those women. Indeed, they probably would not know that any religious concern was present with
respect to the enactment of the legislation. The contention, then, in
essence is that the sole fact that women may have to forego the
abortion choice in itself advances religion. A woman by making the
choice to forego abortion is thereby acquiescing in "state-sponsored
religion.' ' .
To speak of abortion legislation as "state-sponsored religion,"
however, is to again implicate legislative motivation. Apart from
such motivation, the legislation at most discloses a state-sponsored
preference for childbirth. In order, then, to argue that these laws
advance religion the premise would have to be accepted that
religious motivation for a statute is sufficient to render the implementation of the dictates of the statute an advancement of
religion, regardless of whether the statute has the effect of prompting any one to adopt the religious beliefs which provide the motivation.
111. See, e.g., Plaintiffs' First Amendment Brief at 270, 274, McRae v.
Califano, No. 76 Civ. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom.
Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268).
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The Supreme Court has not yet addressed such an argument.
Most often, the claim of an effect advancing religion has pointed to
the financing, directly or indirectly, of the teaching or propagation
of religious beliefs." 2 The Court in evaluating the effects of such
financing has indeed employed a very close scrutiny." 3 However,
even in the midst of such claims, the Court has recognized that the
4
separation of church and state is not required in all respects.
A finding, though, that legislation restricting the funding or
performance of abortion can advance religion, would require a new
conceptualization of the prohibition against laws advancing religion.
The prohibition would have to be expanded to include laws which do
not work towards the propagation of religious belief. As with the inquiry into whether these laws have a secular purpose, the inquiry
into legislative motivation would have to be deemed appropriate in
order for religion to be implicated at all.
THE REQUIREMENT OF No EXCESSIVE ENTANGLEMENT
Similar to the other Establishment Clause requirements, the
prohibition against government becoming excessivly entangled with
religion is based upon the proposition that both religion and government work best when free from the others' interference."5 The
Founding Fathers knew of the strife that results when religious
sects seek to establish absolute supremacy." 6 James Madison wrote:
"Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all differences in Religious opinions....". Recognition is given
to these concerns of the Founding Fathers by the requirement that
there be no excessive entanglement between government and
religion.
The Argument of Excessive Entanglement
Opponents to legislation reflecting anti-abortion interests contend that such legislation has resulted in the excessive entangle112. Such financing may be in the form of aid to church-related schools. See
e.g., Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973); Tilton v. Richardson,
403 U.S. 672 (1971). Alternatively, the financing might be in the form of religious activities in the public schools. See, e.g., School Dist. v. Schempp, 374 U.S. 203 (1963);
Engel v. Vitale, 370 U.S. 421 (1962).
113. See, e.g., note 101 supra and accompanying text.
114. See Zorach v. Clausen, 343 U.S. 306, 312 (1952).
115. Illinois ex. reL McCollum v. Board of Educ., 333 U.S. 203, 212 (1948).
116. See Everson v. Board of Educ., 330 U.S. 1, 8-9 (1947).
117. J. Madison, Memorial and Remonstrance Against Religious Assessments,
II Madison 183, reprinted in Everson v. Board of Educ., 330 U.S. 1, 69 app. (1947).
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ment of religion with the legislative process."' Religious groups
have allegedly entangled themselves in the political process,
pressuring for the enactment of anti-abortion legislation." 9 As such,
challengers argue, the resulting divisiveness is within the scope of
that which the requirement of no excessive entanglement prohibits.
The Supreme Court has noted the danger of political
divisiveness. 20 In Lemon v. Kurtzman,'' in which statutes involving
state aid to church-related schools were challenged, the Court
stated:
Ordinary political debate and division, however
vigorous or even partisan, are normal and healthy
manifestations of our democratic system of government,
but political division along religious lines was one of the
principal evils against which the First Amendment was
designed to protect. . . . The potential divisiveness is a
To have States
threat to the normal political process ....
or communities divide on the issues presented by state
aid to parochial schools would tend to confuse and obscure
other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our
whole history and tradition to permit questions of the
Religion Clauses to assume such importance in our
legislatures and in our elections that they could divert attention from the myriad issues and problems that confront
every level of government.'22
Challengers of abortion-related legislation have argued that the
political divisiveness resulting from the religious concern on the
abortion issue fits squarely within the description given in Lemon.
118. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 325-26 (E.D.N.Y. Jan.
15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268); Womens Services v. Thone, 48 U.S.L.W. 2392 (D. Neb. Nov. 9, 1979);
Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F. Supp. 1172, 1195
n.15 (N.D. Ohio 1979); Right to Choose v. Byrne, 165 N.J. Super. 443, 398 A.2d 587, 595
(Super. Ct. Ch. Div. 1979).
119. See generally McRae v. Califano, No. 76 Civ. 1804, slip op. at 241-80
(E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae, 48
U.S.L.W. 3514 (1980) (No. 79-1268).
120. Meek v. Pittenger, 421 U.S. 349, 372 (1975); Committee for Pub. Educ. v.
Nyquist, 413 U.S. 756, 794-98 (1973); Lemon v. Kurtzman, 403 U.S. 602, 622-23 (1971);
see also Walz v. Tax Comm'n of New York, 397 U.S. 664, 695 (1970) (Harlan, J., concurring).
121. 403 U.S. 602 (1971).
122. Id at 622-23 (citations omitted).
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Organized religion, the litigants argue, intervened in behalf of
legislation embodying anti-abortion interests and diligently worked
towards its enactment.123 Strong opposition developed amongst
various groups, including pro-choice religious groups."4 As a result,
in conjunction with threats of opposition at the polls to opponents of
such legislation,2 5 abortion has allegedly become a "single issue"
election concern drawing attention from other important and urgent
legislative issues.
An Analysis of the Excessive Entanglement Argument
The success of the claim that legislation tending towards antiabortion interests involves excessive entanglement between government and religion depends upon the acceptance of the proposition that
political divisiveness is sufficient by itself to show impermissible entanglement. 2 ' The carrying out of the provisions of such legislation
does not involve any entanglement between government and
religious institutions. In this way, the claim of entanglement here
differs from those which the Supreme Court has thus far considered.
The Court has addressed the question of excessive entanglement only in the context of the institutional entanglement of government and religion.2 7 In such a context the requirement that there be
no excessive entanglement works to prevent the government from
adopting a role where it would have to maintain a continuing
surveillance of religious institutions and their activities.2" The
reason such a surveillance would be needed at all would be to assure
123. See, e.g., Right to Choose v. Byrne, 165 N.J. Super. 443, 398 A.2d 587, 595
(Super. Ct. Ch. Div. 1979).
124. See, e.g. Plaintiff's First Amendment Brief at 291, McRae v. Califano, No.
76 Cir. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v.
McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268).
125. See, e.g., Right to Choose Byrne, 165 N.J. Super. 443, 398 A.2d 587, 596
(Super. Ct. Ch. Div. 1979).
126. The rejection of this proposition in Womens Services v. Thone, 48
U.S.L.W. 2392 (D. Neb. Nov. 9, 1979), and Akron Center for Reproductive Health, Inc. v.
City of Akron, 479 F. Supp. 1172, 1195 n.15 (N.D. Ohio 1979), led the courts to find
against the entanglement argument.
127. See, e.g., Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973);
Lemon v. Kurtzman, 403 U.S. 602 (1971); Walz v. Tax Comm'n of New York, 397 U.S.
664 (1970).
128. In Walz v. Tax Comm'n of New York, 397 U.S. 664 (1970), the Court
stated: "[T]he questions are whether the involvement is excessive, and whether it is
continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement." Id. at 675. See Meek v. Pittenger, 421 U.S. 349, 371
(1975); Lemon v. Kurtzman, 403 U.S. 602, 614-22 (1971).
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that some benefit conferred by the government on the institution
would not be used for the advancement of religion.'29 Political
divisiveness presents a threat in such a situation because of the
potential for political division along religious lines in disputes both
as to whether more or less of the benefit should be conferred, and
as to whom the benefit should go.130
The abortion legislation in controversy, by relating only to the
funding or performing of abortions, does not cause any entanglement between the government and religious institutions. The contention, however, has been made that the legislation limiting
Medicaid's funding of abortions results in an administrative entanglement between the government and the religious decision of
whether to have an abortion."' The meaning and significance of this
assertion, though, is unclear. If it means that the government is exercising surveillance over any religious decision that a woman might
make as to whether she desires an abortion, the assertion is clearly
false. Any administrative decision which the government might
make as to whether she fits into one of the limited categories in
which the legislation allows funding is made without regard to any
religious convictions she may or may not have. 3' Alternatively, if
the assertion is that the limited categories provided by the legislation inhibit a woman in making a religious decision to have an abortion, then what is claimed is not excessive entanglement, but rather
a violation of her right to the free exercise of her religion. As such,
there is no administrative entanglement between government and
religion, at least not as the term has commonly been used,' 33 and the
claim of entanglement rests solely on the allegation of political
divisiveness.
129.
130.
See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614-22 (1971).
Id. at 622-24. The Court in Lemon wrote:
Here we are confronted with successive and very likely permanent
annual appropriations that benefit relatively few religious groups.
Political fragmentation and divisiveness on religious lines are thus likely
to be intensified.
The potential for political divisiveness related to religious belief
and practice is aggravated in these two statutory programs by the need
for continuing annual appropriations and the likelihood of larger and
larger demands as costs and populations grow.
Id. at 623.
131. Plaintiffs' First Amendment Brief at 282-83, McRae v. Califano, No. 76
Civ. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v. McRae,
48 U.S.L.W. 3514 (1980) (No. 79-1268).
132. See notes 11 and 13 supra for the text of the legislation.
133. Administrative entanglement has referred to a relation between government and religious institutions. See notes 127 and 128 supra and accompanying text.
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The Supreme Court has not directly addressed the question of
whether a statute might be invalidated on the basis of political
divisiveness alone.1 ' If it were possible to so invalidate a statute,
then Justice Harlan has already noted that abortion-related legislation might be within the purview of a political divisiveness inquiry:
"[Rleligious groups inevitably represent certain points of view and
not infrequently assert them in the political arena, as evidenced by
the continuing debate respecting birth control and abortions laws.
Yet history cautions that political fragmentation along religious
'
The context of Justice Harlan's
lines must be guarded against."135
statement, however, leaves doubt as to whether he was advocating
an independent political divisiveness test. 3 ' Chief Justice Burger,
however, has stated: "Adherents of particular faiths and individual
churches frequently take strong positions on public issues. . . .Of
course, churches as much as secular bodies and private citizens have
that right." ' 7 Though the Chief Justice was not directly addressing
the question of whether political divisiveness is a sufficient basis by
itself for overturning a statute, the implication of his statement is
that it is not. This follows because the adoption of an independent
political divisiveness test would work to deny churches and
134. Justice Powell, however, suggests that political divisiveness alone may
not be enough: "[Wihere the underlying issue is the deeply emotional one of ChurchState relationships, the potential for seriously divisive political consequences needs no
elaboration. And while the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by the
decisions of this Court, it is certainly a 'warning signal' not to be ignored." Committee
for Pub. Educ. v. Nyquist, 413 U.S. 756, 798 (1973).
135. Walz v. Tax Comm'n of New York, 397 U.S. 664, 695 (1970) (Harlan, J.,
concurring).
136. Justice Harlan continued: "[G]overnment participation in certain programs,
whose very nature is apt to entangle the state in details of administration and planning,
may escalate to the point of inviting undue fragmentation." Id. Thus, he may have
been viewing political divisiveness as relevant only in the context of administrative entanglement. It is possible, then, that Justice Harlan mentioned the activity of religious
groups with respect to abortion legislation as an example of the presence of religious
concerns in the political arena, without intending to suggest that this activity in itself
raises constitutional problems. See Akron Center for Reproductive Health, Inc. v. City
of Akron, 479 F. Supp. 1172, 1195 n.15 (N.D. Ohio 1979).
Further, Justice Harlan stated that the tax exemption for churches challenged
in the case "neither encourages nor discourages participation in religious life and thus
satisfies the voluntarism requirement of the First Amendment. Unlike the instances of
school prayers, . . .the State is not 'utilizing the prestige, power and influence' of a
public institution to bring religion into the lives of its citizens." Walz v. Tax Comm'n of
New York, 397 U.S. 664, 696 (1969) (Harlan, J., concurring) (citations omitted). Like tax
exemptions for churches, and unlike school prayers, abortion legislation can be argued
to have nothing to do with bringing religion into the lives of citizens.
137. Walz v. Tax Comm'n of New York, 397 U.S. 664, 670 (1970).
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adherents of particular faiths the right to take positions on public
issues when their positions result in political division along religious
lines.
This question of whether political division along religious lines
is a sufficient basis for overturning a statute is closely related to
the question of whether a statute's purpose can be rendered nonsecular by virtue of underlying religious motivation. Statutes overturned on the grounds of either political divisiveness or religious
motivation would not be rendered invalid because of what the
statutes do, but rather because of how or why they were enacted.
The arguments presented with respect to abortion legislation illustrate this. The arguments do not point to the legislation advancing religious belief or entangling religious institutions with governmental operations, they instead point to the religious beliefs held by
those who supported their enactment. If, as Justice Burger has suggested, persons of particular faiths have a right to take a stand on
public issues," then religious motivation and political divisiveness
alone would seemingly not be sufficient to present Establishment
Clause problems.1"
THE FREE EXERCISE OF RELIGION
The religious beliefs of those who have supported the enactment of laws embodying anti-abortion interests are not the only
religious beliefs pertinent to the arguments surrounding the constitutionality of such laws. Those seeking to invalidate laws which
put restrictions upon Medicaid's funding of abortion claim that these
138. See also McDaniel v. Paty, 435 U.S. 618 (1978) (clergy have a free exercise
right to run for public office).
139. The possibility of the adoption of an independent political divisiveness
test will probably be influenced by whether religious motivation is deemed to be a sufficient basis by which to find a statute to have no secular purpose. The Supreme
Court's consideration of political divisiveness has been in the context of legislation
already on the borderline of the Establishment Clause problems, and the concern has
been, at least in part, that legislators not spend important time on legislation of questionable constitutionality. See, e.g., note 122 supra and accompanying text. When the
issue is not one such as state aid to parochial schools, political division along religious
lines would be a poor indicator of the importance of the issue. Very possibly, there was
political divisiveness concerning slavery, or various wars. See L. TRIBE, supra note 31,
at 867. Likewise, probably neither side of the debate concerning the governmental funding of abortions would contend that the issue is unimportant. Additionally, when the
issue is unrelated to the advancement of religious beliefs or institutions, political
divisiveness may merely show that the legislative decision is of public importance and
has inextricable philosophical-theological implications.
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restrictions infringe upon the religious beliefs of indigent women
140
and deny these women their right to religious liberty.
The protection offered by the Free Exercise Clause is broad. It
extends not only to religious belief, but also to actions rooted in
religious belief."' The religions protected are limited neither to
traditional theistic religions,1 42 nor by judicial determination of the
truth or falsehood of their tenets.'43 Further, the protection extends
not only to direct interference of government in the beliefs or practices of religion, but may also extend to governmental schemes
which indirectly burden the practice of one's religion.'
The Argument of a Denial of the Free Exercise of Religion
There are theologians from various religious backgrounds
who believe that women have a religious duty to make a conscientious decison about abortion.'45 At least some theologians believe
that under certain circumstances women may have even a mandatory duty to have an abortion. 46 This being so, the decision to terminate a pregnancy is contended to be a matter of conscience and
religious liberty which the Religion Clauses put outside the scope of
governmental authority.'4 7
140. Though the claim of a violation of the Free Exercise Clause has also been
raised with respect to laws regulating the performance of abortions, the discussion
presented here will be limited to laws restricting Medicaid's funding of abortion. See
note 30 supra.
141. McDaniel v. Paty, 435 U.S. 618, 626-29 (1978); see also Wisconsin v. Yoder,
406 U.S. 205 (1972).
142. See Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961).
143. See United States v. Ballard, 322 U.S. 78, 86 (1944).
144. Sherbert v. Verner, 374 U.S. 398 (1963). But see Braunfeld v. Brown, 366
U.S. 599 (1961).
145. Theologians have given testimony concerning this in at least two cases.
See McRae v. Califano, No. 76 Civ. 1804, slip op. at 178-199 (E.D.N.Y. Jan. 15, 1980),
prob. Juris. noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980) (No.
79-1268); Right to Choose v. Byrne, 165 N.J. 443, 398 A.2d 587, 596 (Super. Ct. Ch. Dir.
1979).
146. See McRae v. Califano, No. 76 Civ. 1804, slip op. at 180-81 (E.D.N.Y. Jan.
15, 1980) prob. juris noted mem., sub nom. Harris v. McRae, 48 U.S.L.W. 3514 (1980)
(No. 79-1268). Testimony in McRae that abortion may in certain instances be a mandatory duty was from the Conservative and Reformed branches of the Jewish tradition. The mandatory nature of the duty was perhaps tempered somewhat by recognition that the decision finally rests with the woman. Slip op. at 181. The orthodox
Jewish tradition generally believes that abortion is permissible only when the
mother's life is endangered. Slip op. at 175-76.
147. Id., slip op. at 326-28.
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The protection afforded by the Free Exercise Clause arguably
extends not only to the obedience of doctrinal faiths, but also to
such conscientious decisions as that concerning abortion. The conscientious nature of religious belief has been recognized in conscientious objector cases. " 8 Judge Augustus Hand stated:
[Religious belief] is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom
in preference to transgressing its tenents.
.. . [C]onscientious objection to participation in any
war under any circumstances ....
may justly be regarded
as a response of the individual to an inward mentor, call it
conscience or God, that is for many persons at the present
time the equivalent of what has always been thought a
religious impulse. "9
A similar understanding of the nature of religious belief has been
reached by the Supreme Court.5 In interpreting the requirement
that an objector to military service has beliefs relating to a
Supreme Being, the Court included within such beliefs "all sincere
religious beliefs which are based upon a power or being, or upon a
faith, to which all else is subordinate or upon which all else is
ultimately dependent."'' These beliefs are those that occupy a place
in the life of the believer parallel to that which God occupies in orthodox faiths. 52 Thus, exempted from military service are "all those
whose consciences, spurred by deeply held moral, ethical, or
religious beliefs, would give them no rest or peace if they allowed
themselves to become part of an instrument of war."'' 53 Opponents to
the Medicaid restrictions argue that in the same way as the conscientious objection to military service is religious, so too the conscientious decision not to bring an unwanted child into the world is
5
religious. '
148. See, e.g., Welsh v. United States, 398 U.S. 333 (1970); United States v.
Seeger, 380 U.S. 163 (1965); United States v. Kauten, 133 F.2d 703 (2d Cir. 1943).
149. United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943).
150. See Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger,
380 U.S. 163 (1965).
151. United States v. Seeger, 380 U.S. 163, 176 (1965).
152. Id
153. Welsh v. United States, 398 U.S. 333, 344 (1970).
154. See, e.g., Plaintiffs' First Amendment Brief at 279-80, McRae v. Califano,
No. 76 Cir. 1804 (E.D.N.Y. Jan. 15, 1980), prob. juris. noted mem., sub nom. Harris v.
McRae, 48 U.S.L.W. 3514 (1980) (No. 79-1268).
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The protection a woman is given to make a religious choice
about abortion is not defeated by the fact that abortion legislation
affects only the act of abortion and not beliefs about abortion. Acts
grounded in religious belief may be protected just as the beliefs
are.' 5 Thus, the Amish way of life, being rooted in religious belief, is
protected from such state interference as requiring attendance at
secondary schools." Likewise, the religious-based action of becoming a minister cannot be burdened by exclusion from legislative positions.'57 Therefore, though the restrictions upon the Medicaid funding of abortion affects only the ability to obtain an abortion, they
still burden a woman's conscientious and religious liberty.
Further, though the burden is not direct in the same way
criminal sanctions would be, nevertheless, because the Medicaid nonfunding of most abortions forces a woman to choose between her
religious beliefs and receiving benefits, the burden is arguably too
great. In this context Sherbert v. Verner'8 is important. In
Sherbert, a Seventh Day Adventist was denied unemployment compensation because of her refusal, due to religious beliefs, to take a
job where she would have to work Saturdays.'59 Her ineligibility was
thus due to the practice of her religion and she was forced "to
choose between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of her
religion in order to accept work, on the other hand."'' Such a
burden on her religious practice is of the same sort as that imposed
by a fine.'
The legislation restricting the Medicaid funding of abortion is
argued to place this type of a burden upon a woman's conscientious
and religious liberty to terminate a pregnancy. When a woman
makes religious or conscientious determination that abortion is the
moral choice, she is forced to choose between abandoning what her
conscience dictates and receiving the Medicaid benefits for continuing the pregnancy, on the one hand, and following her conscientious
decision and forfeiting the benefits, on the other hand. Therefore,
challengers contend, because there is no compelling state interest to
155. McDaniel v. Paty, 435 U.S. 618, 626-29 (1978); Wisconsin v. Yoder, 406
U.S. 205 (1972).
156. Wisconsin v. Yoder, 406 U.S. 205 (1972).
157. McDaniel v. Paty, 435 U.S. 618, 626-29 (1978).
158. 374 U.S. 398 (1963).
159. Id. at 401.
160. Id at 404.
161. Id.
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justify this burden, the restrictions on the Medicaid funding are
claimed to be unconstitutional as violative of the Free Exercise
Clause. 6 '
An Analysis of the Free Exercise Argument
Apart from any questions which may arise as to the religious
nature of the abortion decision, granting such a religious nature,
there is a basic problem with the argument that the funding of abortion is then constitutionally mandated. The difficulty arises in that
essentially what is being argued is that the Free Exercise Clause is
being violated by not providing an indigent woman the funding
necessary to effectuate a religious decision. Such a claim of a Free
Exercise Clause violation is very different from one in which a person has been denied benefits, to which he or she is otherwise entitled,
due to the exercise of his or her religion. Here benefits have not
been denied due to religious practices, rather they are being sought
to enable one to carry out a religious decision.
The Supreme Court has recognized in the abortion context that
the state is not obligated to fund the exercise of constitutional
rights. In Maher v. Roe,' the Court held that though a state may
not prohibit a woman from exercising the constitutional right to
have an abortion, the state is not then obligated to provide equal
funding for both abortion and childbirth.'" The State may adopt a
policy preference for childbirth" 5 and, therefore, is not required to
assure that a woman's alternative choices of abortion and childbirth
are equally protected. The present argument differs from that in
Maher in that the funding is argued to be necessary not to effectuate equal protection, but to effectuate a religious decision.
The implications of this type of reasoning, however, can be
seen by an analogy, utilized in Maher, ' to private and public
schools. Parents have a constitutional right to send their children to
private schools.'67 In Maher, the court recognized that by the same
162. One district court has agreed and found the non-funding of abortions to
violate the Free Exercise Clause. See note 27 supra and accompanying text.
163. 432 U.S. 464 (1977).
164. Id. at 474. The Court noted that though the constitutional right to travel
prohibits durational requirements for public benefits, obviously the constitutional right
is not impinged upon by a state's refusal to pay bus fares for indigent travelers. Id. at
474 n.8.
165.
166.
167.
Id. at 475-78.
Id. at 476-77.
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
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reasoning used to argue that the funding of abortion is necessary to
give equal protection to an indigent woman's alternative choices of
abortion and childbirth, one could argue that public funding of
private schools is necessary to give indigent parents equal protection in their alternative choices of whether to send their children to
public or private schools.'" Likewise, one could argue using the
same reasoning employed in the free exercise claim here, that the
state is required to fund private schools in order to allow parents
the religious liberty to choose a religious education for their
children. 69' Apart from any Establishment Clause problems, "' the
argument clearly goes outside the scope of the Free Exercise Clause
as it has thus far been applied.
This is readily apparent by making a comparison of the instant
situation to one in which an indirect burden is placed upon religious
beliefs through the withholding of public benefits due to religious
practices. In Sherbert v. Verner,'71 a woman's religious practice of
not working Saturdays led to a ruling that she was not eligible for
unemployment compensation.' As such, she was denied benefits to
which she was otherwise entitled due to her religious practices.'73
The instant situation differs from that in Sherbert in that while
statutory benefits have been provided for unemployment compensation, no such benefits have been provided for abortions. Religious
practices led to a loss of benefits in Sherbert, but here benefits are
sought to carry out a religious decision.
Thus, a religious decision to have an abortion does not work to
deny an indigent woman benefits to which she is otherwise entitled.
The burden on religious liberty is caused, as was the inability to obtain an abortion in Maher,' by the indigence itself. Though the nonfunding of abortions may work to encourage a woman to choose
168. Maher v. Roe, 432 U.S. 464, 477 (1977).
169. Though clearly there would be Establishment Clause problems with such
an argument because the government would be paying for a religious education, the
problems go deeper than the Establishment Clause. Consider, for example, parents
who for religious reasons believed their children ought to have no secondary education
in the public schools, but only an education in farming. While the Free Exercise Clause
might work to allow the children to be excluded from the public schools, see Wisconsin
v. Yoder, 406 U.S. 205 (1972), it would be absurd to argue that the state is obligated to
pay for the farming education.
170. See note 169 supra.
171. 374 U.S. 398 (1963).
172. Id. at 401.
173. Id. at 404.
174. Maher v. Roe. 432 U.S. 464, 474 (1977).
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childbirth, the encouragement is no different from that which an indigent parent faces when deciding whether to send a child to the
public schools. Neither the funding of childbirth nor the funding of
public schools put any obstacles in the way of religious freedom.
Clearly, the state may, in some instances, have the power to lift the
burden which indigence places on religious freedom.'75 The question,
however, is whether the state has the constitutional duty to do so. In
that the Free Exercise Clause requires only that Congress not prohibit the free exercise of religion,' not that Congress effectuate its
free exercise, the answer would seem to be no.
Two additional aspects of the Free Exercise Clause might be
problematic. First, the argument seeks to invalidate an entire
statute on the basis that it may violate the free exercise of religion
of some women. As such, the argument is not seeking an exemption
from the statute for certain identified women with specified
religious beliefs.'
Whether a statute not specifically aimed at
religious conduct 78 might be so invalidated is, perhaps,
questionable.'
A second uncertain aspect of the argument is whether the protection of the Free Exercise Clause would extend to a decision
because of a religious duty to make it conscientiously. Though according to some theologians there are instances when the duty to obtain
an abortion would be religiously mandatory, more commonly the
religious duty would be to make a conscientious decison about abortion. 80 Although the conscientious objector cases involved statutory,
not free exercise, determinations, perhaps significant is the fact that
the beliefs protected in those instances were not of the same exact
nature as a conscientious decision concerning abortion. The objectors who were granted military exemptions believed that all war
was wrong. 8' Obviously, here the religious beliefs are not that all
175. Possibly, the State could fund both private education and abortions for indigents.
176. See note 2 supra for language of the Free Exercise Clause.
177. Thus, the relief sought here differs from the relief sought in Wisconsin v.
Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963).
178. Compare challenged state constitutional provision in McDaniel v. Paty,
435 U.S. 618, 621 n.1 (1978), with restrictive Medicaid provisions for abortions, notes 11
and 13 supra.
179. See Right to Choose v. Byrne, 165 N.J. Super. 443, 398 A.2d 587, 596-97
(Super. Ct. Ch. Div. 1979).
180. See notes 145-46 supra and accompanying text.
181. Compare Welsh v. United States, 398 U.S. 333 (1970); United States v.
Seeger, 380 U.S. 163 (1965) (objectors opposed to all wars were granted exemptions),
with Gillette v. United States, 401 U.S. 437 (1971) (objector opposed only to unjust
wars was denied an exemption).
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childbirth is wrong. At most, childbirth is only wrong in those
limited instances when a woman believes that abortion is religiously
mandatory and in other instances in which she decides that she
ought to have an abortion.
Conceivably, there are many important decisions made in the
course of the lifetime in which one might consider it a religious duty
to make the decision conscientiously. Examples might include decisions concerning vocation and marriage. The ramifications of treating the decision finally reached as if it were a tenet of one's religion,
and thus protected under the Free Exercise Clause, would be very
unclear. Whether such decisions ought to be so protected because of
a religious duty to make the decision conscientiously is, at least,
doubtful.'82
SOME BROADER IMPLICATIONS CONCERNING
RELIGIOUS MOTIVATION
Though the Free Exercise Clause contention that the religious
liberty of indigent women has been denied emphasizes the effects of
the challenged legislation, the claim of a violation of the Establishment- Clause is not based upon effects, but rather upon motivation.
The constitutional significance of the fact that legislators may have
had religious motives for supporting particular abortion laws is the
central question underlying the possibility of abortion laws being invalidated on Establishment Clause grounds. Apart from the practical difficulties of ascertaining legislative motivation, at least two
other problems emerge with respect to deeming such religious
motives suspect. First, because of a broadening constitutional definition of religion, a treatment of religious motives as illicit would
threaten invalidation for laws reflecting moral, philosophical or
humanitarian concerns. Second, such a treatment of religious
motives finds no support as being intended by the framers of the
Constitution.
Seeking a Definition of Religion
The ramifications of viewing religious motivation as constitutionally suspect must be viewed in the context of the attempt to
find a judicial definition of religion. The conscientious objector
182. See Right to Choose v. Byrne, 165 N.J. Super. 443, 398 A.2d 587, 597
(Super. Ct. Ch. Div. 1979).
183. See note 84 supra.
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cases,'" though not actually determining a first amendment definition of religion," 5 interpreted beliefs relating to a Supreme Being as
including "all sincere religious beliefs which are based .. .upon a
faith . . .upon which all else is ultimately dependent." '8 If such a
definition of religion is employed for Establishment Clause purposes,
and that clause prohibits legislators from supporting legislation for
religious reasons, then, in essence, the "ultimate" concerns of
legislators become a constitutionally deficient basis for legislation.
The unacceptability of such a result can be further illustrated by
noting the Supreme Court's apparent recognition of Secular
Humanism as a religion. 8 ' For the Secular Humanist who deems
"human needs and ends" of ultimate importance,' 8 the fact that certain legislation satisfies human needs would be an illicit religious
motive for supporting such legislation. Obviously, this is untenable;
no one could seriously contend that the Constitution requires
legislators to ignore such values and seek justification for their positions elsewhere.
To avoid this conclusion, and the possibility that humanitarian
laws be invalidated on Establishment Clause grounds, the suggestion has been made that what is needed is a definition of religion,
which, for Establishment Clause considerations, would be limited to
However, at least two factors
the more traditional religions.'
counsel against this suggestion. First, the drafting of the Religion
Clauses themselves provides no support for such differing definitions. As Justice Rutledge has stated:
184. Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380
U.S. 163 (1965); see also United States v. Kauten, 133 F.2d 703 (2d Cir. 1943).
185. The cases were decided in terms of statutory construction, but the construction employed may have been constitutionally necessary. See Note, Toward a
ConstitutionalDefinition of Religion, 91 HARV. L. REV. 1056, 1064 (1978).
186. United States v. Seeger, 380 U.S. 163, 176 (1965).
187. Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961). Other nontheistic
religions recognized by the Court were Buddhism, Taoism and Ethical Culture. Id.
188. "Human needs and ends"_were what Welsh expressed to be his ultimate
concerns in Welsh v. United States, 398 U.S. 333, 342 (1970). See note 184 supra and
accompanying text. These ultimate concerns are perhaps consistent with one article's
description of Secular Humanism:
'Secularism' is a doctrinal belief that all morality is based solely in
regard to the temporal well-being of mankind to the exclusion of all belief
in God, a supreme being, or a future eternity. 'Humanism' is a philosophy
or attitude that is concerned with human beings, their achievement and
interests, and the condition or quality of being human, rather than with
the abstract beings and problems of theology.
...Secular Humanism is a religion whose doctrine worships Man
as the source of all knowledge and truth, whereas theism worships God as
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"Religion" appears only once in the Amendment. But the
word governs two prohibitions and governs them alike. It
does not have two meanings, one narrow to forbid "an
establishment" and another, much broader, for securing
"the free exercise thereof." "Thereof" brings down
"religion" with its entire and exact content, no more and
no less, from the first into the second guaranty, so that
Congress and now the states are as broadly restricted
concerning the one as they are regarding the other.19 °
Thus, the adoption of differing definitions would have to be for
reasons not disclosed by the wording of the Religion Clauses
themselves.
Second, the first amendment principle of neutrality might be
jeopardized by not subjecting nontraditional ultimate concerns to
Establishment Clause restrictions. For example, though public
schools can include a study of religion "when presented objectively
as part of a secular program of education, '91 they are clearly
precluded from a policy of persuasively espousing that "[mian's chief
end is to glorify and enjoy God forever." '92 However, if Establishment Clause restrictions are applicable only to traditional religions,
then schools would be free to openly advocate that Transcendental
Meditation is "the universal basis of life .. .[and] the source, course,
'
and goal of -all existence."193
More orthodox religions would be
disparaged through this selective enforcement of the Establishment
the source of all knowledge and truth.
Whitehead and Conlan, The Establishment of the Religion of Secular Humanism and
Its First Amendment Implications, 10 TEx. TECH. L. REV. 1, 29-30 (1978) (footnotes
omitted).
189. L. TRIBE, supra note 31, at 826-33. The apparent presupposition to this
suggestion is that under the present requirements of the Establishment Clause, if an
ultimate concern definition were adopted, legislation could be invalidated solely on the
ground that it was motivated by the ultimate concerns of its supporters. See L. Tribe
at 827-28, 831. Such a result, however, does not clearly follow. If legislation does not
seek to instill the ultimate concerns of its supporters in those affected by the legislation, the fact that a legislator's ultimate concerns were a reason for the legislator to
support the legislation is not yet of any certain constitutional significance. See generally
notes 77-87 supra and accompanying text.
190. Everson v. Board of Educ., 330 U.S. 1, 32 (1947) (Rutledge, J., dissenting).
191. School Dist. v. Schempp, 374 U.S. 203, 225 (1963).
192. Westminster Shorter Catechism, Question 1.
193. See Malnak v. Yogi, 440 F. Supp. 1284, 1292 (D.N.J. 1977), aff'd 592 F.2d
197 (3d Cir. 1979) (quoting from a textbook used in a course on Transcendental Meditation in public schools in New Jersey). The case held the teaching of Transcendental
Meditation in public schools violative of the Establishment Clause, 440 F. Supp. at
1327.
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Clause because the only answers which could receive a stamp of approval in the public schools concerning such questions as the nature
of mankind and the meaning of life.9 would be the religiously unorthodox ones.'95
Neutrality would similarly suffer in the political process. If, for
example, only theistic religions were viewed as providing illicit
motives, then only theists would have to find some other justification for their concerns. For theistic pacificists whose opposition to
large defense appropriations stems from their belief that "God opposes violence," either such a belief would have to be hidden, or any
attempt to stir a significant political movement abandoned. On the
other hand, the belief that human life must be preserved at all costs
because it represents the highest achievement of the evolutionary
process could be legitimately advanced on behalf of the same
pacificist cause. Such a distinction, however, between these two
possible bases for political activity hardly seems constitutionally
mandated. To preserve neutrality, then, and yet avoid the absurd
result that legislation might be invalidated because its supporters
acted in accord with their ultimate concerns, the religious reasons
legislators may have had for supporting an enactment ought to be
treated as constitutionally irrelevant.
The View of the Founding Fathers
The important role which religious convictions played for the
Founding Fathers in their own political controversies tends to dispel
any notion that they intended to remove such considerations from
the political process. In declaring independence, they wrote: "We
hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable
194. The religious nature of such questions was noted in a Vatican II draft
declaration from which the Supreme Court has quoted:
Men expect from the various religions answers to the riddles of the
human condition: What is man? What is the meaning, and purpose of our
lives? What is the moral good and what is sin? What are death, judgment,
and retribution after death?
Draft declaration on the Church's relations with non-Christians, Council Daybrook,
Vatican II, 3d Sess. p. 282, N.C.W.C., Washington, D.C. (1965), quoted in United States
v. Seeger, 380 U.S. 163, 182 (1965).
195. The Supreme Court perhaps recognized this problem when it wrote: "We
agree of course that the State may not establish a 'religion of secularism' in the sense
of affirmatively opposing or showing hostility to religion, thus 'preferring those who
believe in no religion over those who do believe."' School Dist. v. Schempp, 374 U.S.
203, 225 (1963).
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rights; that among these are life, liberty, and the pursuit of happiness ...
",196 The basis for the unalienable rights claimed by those
signing the Declaration of Independence was placed in the religious
belief that they had been endowed by a Creator.
Similarly, and more pertinent, the drafters of the first amend"
ment 97
' themselves espoused, without timidity, religious reasons for
the separation of church and state. Madison, in his famous Memorial
and Remonstrance,'98 voiced adamant opposition to a bill proposing a
tax for the support of Christian teachers.'99 Viewing the bill as
violating the principle of religious freedom, he wrote: "If this
freedom be abused, it is an offense against God, not against man: To
God, therefore, not to men, must an account of it be rendered. 2 0 '
Madison's Memorial and Remonstrance led to the defeat of the
religious tax bill, and in its stead the "Virginia Bill for Religious
196. Declaration of Independence.
197. The Supreme Court has recognized that Madison and Jefferson played
leading roles in the drafting of the First Amendment. See Everson v. Board of Educ.,
330 U.S. 1, 13 (1947); see also Reynolds v. United States, 98 U.S. 145, 163-164 (1879).
198. J. Madison, Memorial and Remonstrance Against Religious Assessments,
II Madison 183, reprinted in Everson v. Board of Educ., 330 U.S. 1, 63 app. (1947). Mr.
Justice Rutledge described this document as follows:
This is Madison's complete, though not his only, interpretation of
religious liberty. It is a broadside attack upon all forms of "establishment"
of religion, both general and particular, nondiscriminatory or selective ....
[T]he Remonstrance is at once the most concise and most accurate statement of the view's of the First Amendment's author concerning what is
"an establishment of religion".
Everson, 330 U.S. at 37 (Rutledge, J., dissenting) (footnotes omitted).
199. The bill is reprinted in Everson v. Board of Educ., 330 U.S. 1, 72 app.
(1947).
200. J. Madison, Memorial and Remonstrance Against Religious Assessments,
II Madison 183, reprinted in Everson v. Board of Educ., 330 U.S. 1, 66 app. (1947).
Madison gave additional religious reasons for his opposition to the bill:
ITlhe policy of the bill is adverse to the diffusion of the light of
Christianity. The first wish of those who enjoy this precious gift, ought to
be that it may be imparted to the whole race of mankind. Compare the
number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the
former! Does the policy of the Bill tend to lessen the disproportion? No; it
at once discourages those who are strangers to the light of [revelation]
from coming into the Region of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it
to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity
would circumscribe it, with a wall of defence, against the encroachments
of error.
Memorial and Remonstrance, 330 U.S. at 70 app.
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Liberty" 1 was enacted. 2 ' The original draft of. this latter bill was
written by Thomas Jefferson." 3 The bill contained within its preamble the following statement:
Almighty God had created the mind free; that all attempts
to influence it by temporal punishments or burthens, or
by civil incapacitations, tend only to beget habits of
hypocrisy and meanness, and are a departure from the
plan of the Holy author of our religion, who being Lord
both of body and mind, yet chose not to propagate it by
coercions on either . . . ; that to compel a man to furnish
contributions of money for the propagation of opinions
"0
which he disbelieves, is sinful and tyrannical ...
Thus, for the state to exact taxes to pay Christian teachers was
claimed to be both an "offense against God,"20° and "a departure
from the plan of the Holy author of our religion .. ." a As such, the
motivation underlying this effort to promote Establishment Clause
principles in Virginia was not by any means clearly secular.
The conclusion which tends to follow is that for the Founding
Fathers there was an important, though perhaps subconscious,
distinction between those things that laws do, and the source of
their motivation. Madison was firmly against the operation of laws
directly working towards the propagation of religious belief. However, in his opposition, he freely explained how such laws would inhibit the spreading of the light of Christianity." 7 Madison could not,
then, have plausibly understood religious concerns to be an illicit
motive by virtue of the Establishment Clause for he himself invoked
such concerns in behalf of Establishment Clause principles. Jefferson apparently did the same.2"8 Therefore, to deem religious motivation as illicit would incorporate into the Establishment Clause a
fear, seemingly unknown to the Founding Fathers, that legislators
201. 12 Hening, Statutes of Virginia 84 (1823), reprinted in part in Everson v.
Board of Educ., 330 U.S. 1, 12-13 (1947). See also McGowan v. Maryland, 366 U.S. 420,
492-494 (1961) (Frankfurter, J., concurring).
202. See Everson v. Board of Educ., 330 U.S. 1, 12-13 (1947).
203. Id
204. Virginia Bill for Religious Liberty, 12 Hening, Statutes of Virginia 84
(1823), reprintedin part in Everson v. Board of Educ., 330 U.S. 1, 12-13 (1947). See also
McGowan v. Maryland, 366 U.S. 420, 492-494 (1961) (Frankfurter, J., concurring).
205. See note 200 supra and accompanying text.
206. See note 204 supra and accompanying text.
207. See note 200 supra.
208. See notes 203-204 supra and accompanying text.
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might look to their religious beliefs in making their legislative decisions. Such an incorporation might call into question a significant
aspect of the motivation underlying the Establishment Clause itself.
CONCLUSION
Present abortion laws may or may not be the result of religious
motivation." 9 The question, however, ought to have no constitutional
significance. A policy of encouraging childbirth or discouraging abortions is not equivalent to a policy of instilling a belief in citizens that
"God opposes abortion." Because it is the former policy, not the latter, which is effectuated through the abortion legislation being
challenged, the fact that legislators may have had religious reasons
for supporting that policy ought to be no more pertinent to constitutional considerations than the many other factors which might affect
a legislator's vote.
The Founding Fathers created a government in which the people, with whatever religious beliefs they may or may not possess,
have a right to exact an influence upon what are to be their laws.
Although many important limitations have been put upon the types
of laws which may be enacted, the Constitution has never mandated
how the people are to conceptualize issues of public importance. Any
requirement that persons in political positions think "secularly"
before being free to state their views or place their vote, is a requirement of which the Founding Fathers seemingly had no
knowledge.
The concern to maintain a wall separating church and state is
entirely cognizable as a doctrine which recognizes that it is not the
role of the state to advance religious beliefs or institutions. Such a
concern does not require a similar wall to be constructed within the
value structure of each legislator. The attempt to build this latter
wall ends in the absurd consequence that legislators are somehow
expected to ignore that which they deem to be of paramount importance whenever they enter the political arena.
Steven L. Skahn
209. This note has not attempted to answer this question. See note 3 supra
and accompanying text.
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